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TMI Blog2021 (6) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... se 71 which has to be first applied and the remedy available before the Dispute Resolution Board has to be first exhausted. We are not inclined to uphold the argument that Dispute Resolution Board could be constituted only if petitioner agreed and, therefore, since the petitioners have not given their consent, such Board could not be constituted. We are therefore persuaded to uphold the preliminary objection raised by the learned counsel for the respondents and direct the respondents to constitute a Dispute Resolution Board within a period of one month from the copy of passing of this order is produced before them and further direct that the Board shall, after providing opportunity of hearing to the petitioners as well as the respondents, g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commodation for DSC Personnel at Air Force Station Amla for a lumpsum amount of ₹ 14,12,95,807.20/- vide letter dated 29.08.2017 and a work order to that effect was issued to it on 12.09.2017. A letter dated 10.04.2019 was issued to the petitioners by the respondent No.4- The Garrison Engineer (Air Force) Amla, District Betul (M.P.) stating that as per Clause 29 of Special Condition of the Contract Agreement, in case of both the petitioners, the provision of Goods and Service Tax (GST) with effect from 01.07.2017 have been made part of the Contract Agreement. It was further stated that as per Government of India Notification No.11/2017 dated 28.06.2017, the rate of GST on works contract with effect from 01.07.2017 was fixed @ 18% whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para-2 and stated that the amendment to contract clearly provided that no reimbursement/refund on account of GST was admissible under the subject contract. Similarly, the petitioner- M/s. Ramji Das Dhal Construction Private Limited drew attention of respondent No.4 to the Corrigendum No.1 Serial No.1 Amendment Schedule A Notes No.15 which provided that with implementation of GST the effect of same shall be deemed to be included in the quoted rates and no reimbursement/refund on this account shall be admissible. It was further pointed out by both the petitioners that as Schedule A Notes will supersede the Special Condition Clause 29 of Contract Aagreement, no recovery could be effected towards GST. On receipt of reply submitted by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in the quoted rates and no reimbursement/refund on this account shall be admissible. Therefore, neither the respondents would be required to reimburse any amount to the contractors/petitioners nor the contractors/petitioners would be required to refund any amount to the respondents. 5. Mr. Vikram Singh, learned counsel for the respondents opposed the prayer and submitted that writ petitions cannot be entertained in a contractual dispute particularly when efficacious alternative remedy is available to the petitioners in the contract itself. He referred to Special Condition 39 of the Contract and terms of Condition 71 of General Conditions of Contract filed alongwith the reply to the writ petitions at Annexure-R/1. 6. Mr. K.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of the execution of the contract. The work awarded to the petitioners has still not been completed. In order to appreciate the controversy, we deem it appropriate to quote following clauses: Clause 39 of the Special Conditions of the Contract 39. Appointment of Sole Conciliator in terms of Condition 71 of IAFW-2249 : All disputes arise between the parties to the contract during execution of work or after completion or after determination/cancellation/termination of the contract including any disagreement by either party with any action, inaction, opinion, instruction, certificate or valuation by the Accepting Officer or his nominee, the matter in dispute shall be in the first place be referred the conciliation by a sole Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If dispute (other than those for which the decision of the CWE or any person is by the contract expressed to be final and binding) of any kind whatsoever arises between the parties to the contract during the execution of the works, or after completion or after determination/cancellation/termination of the contract, including any disagreement by either party with any action, inaction, opinion, instruction, certification or valuation by the Accepting Officer or his nominee, the matter in dispute shall, in the first place be referred to the Disputes Resolution Board (DRB) in case of contracts valuing ₹ 10 crore or more and to conciliation, by a sole conciliator, in case of contracts valuing less than ₹ 10 crore. In case of disag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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